Premises Liability

This month we received a very interesting decision regarding New York's Firefighter rule. In the old days, the rule was if you are a firefighter, you could not sue if you were hurt in the course of doing your duty, like if you were saving one's life. So, if you were fighting a fire, and you fell down a set of stairs that had collapsed because it was not properly maintained, you could not sue. Of course, if you were not a firefighter and you were injured when that same staircase collapsed, you could sue. The State changed the law (General Municipal Law § 205-a) and now allows a firefighter to sue if he or she is injured so long as the defective condition is the result of a code violation. Thus, prior to the case mentioned below, for a firefighter to win his or her case, a defective condition would need to be proven along with a code violation. Now, however, it seems like there is one more element to prove.

Desthers v. Espinal (2014 NY Slip Op 7323) decided on October 29, 2014, by the Appellate Division, Second Department involved a claim by a New York City Firefighter under General Municipal Law § 205-a. The plaintiff, John Desthers, while responding to a fire, fell off a scuttle ladder within the Espinal home while he was trying to gain access to the roof. The plaintiff alleged a potpourri of violations of the New York City Building Code; Fire Code; Multiple Dwelling Law; Administrative Law and the Housing Maintenance Code as the statutory prerequisite to prevail on a General Municipal Law § 205-a claim for the firefighter. The plaintiff also alleged common law negligence for failure to maintain the scuttle ladder in the premises which were built in 1924 and contained the original ladder.

In affirming a dismissal of the action by the Lower Court, the Appellate Division in a unanimous decision stated:

"General Municipal Law § 205-a provides a right of action for firefighters who are injured as a result of any neglect, omission, willful or culpable negligence of the defendant in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments (General Municipal Law § 205-a[1] ). Although the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires that the circumstances surrounding the violation indicate that it was a result of neglect, omission, willful or culpable negligence on the defendant's part (Lustenring v. 98-100 Realty, 1 AD3d 574, 578 [internal quotation marks omitted]; see McCullagh v. McJunkin, 240 A.D.2d 713, 713; Lusenskas v. Axelrod, 183 A.D.2d 244, 248-249).

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that she neither created nor had any knowledge of the alleged defect (see Lustenring v 98-100 Realty, 1 AD3d at 578; McCullagh v. McJunkin, 240 A.D.2d at 713; Lusenskas v Axelrod, 183 A.D.2d at 249). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the alleged violations of the Administrative Code of the City of New York, including section 28-301.1 thereof, were the result of some neglect, omission, or culpable negligence on her part (see Lustenring v 98-100 Realty, 1 AD3d at 578; McCullagh v McJunkin, 240 A.D.2d at 713). The defendant also established her prima facie entitlement to judgment as a matter of law dismissing the common-law negligence cause of action by demonstrating that she neither created nor had actual or constructive notice of the defect before the incident (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Schnell v Fitzgerald, 95 AD3d 1295, 1295-1296; Lal v Ching Po Ng, 33 AD3d 668, 668). In opposition, the plaintiffs failed to raise a triable issue of fact."

This appears to be a new wrinkle in the law and I would be willing to bet that the Court of Appeals - the State's highest Court - will like to take the chance at reviewing it.

Terrence and Howard settled a trip and fall case for $1,100,000. In this case, our client (a resident of Brooklyn) was a cleaning lady who was hired to clean the newsroom of the Wall Street Journal.

$750,000 Verdict
Jane and John Doe v. Defendant Driver

The names are redacted for privacy reasons. In this automobile accident case, the female plaintiff was injured and suffered seriously debilitating injuries.

$525,000 Settlement
Injured When the Trailer upon which He was Standing Collapsed

Our client was a teamster, working at a concrete plant in Westchester, when he was seriously injured. At the time, he was standing on a trailer, which is colloquially known as a "low boy", when the wooden slats upon which he was standing, collapsed.

$457,500 Settlement
Car Accident Victim With Pre-Existing Neck Injury

Settled a client's case for $457,500. The client suffered a significant cervical spine injury requiring a fusion surgery.He was t-boned by a car exiting Purdy's farmer and the Fish in Somers, New York.

Howard Stolzenberg settled a case for $450,000 where a construction worker was forced to use an exterior fire escape ladder to access the top of the building all while carrying a one gallon bucket of paint. The worker fell and fractured his ankle.

$100,000 Settlement
Teenager Hit From Behind

We just settled a case for a young girl who was injured when she was struck from behind while waiting at a red light at an intersection near the entrance to the Saw Mill in Yonkers. She had hip and shoulder surgery.

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